Merit System Principles 8: Favoritism and Political Influence

(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and

(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election."

What is the intent behind the eighth Merit System Principle?
This principle has two parts, each with its own intent and meaning. Subsection (A) first embodies the long-standing legal tenet that Federal agencies cannot treat Federal employees arbitrarily. See Bush v. Lucas, 462 U.S. 367, 385 (1983); Buggie v. Department of Health & Human Services, 27 M.S.P.R. 109, 115 (1985) (Johnson, V.C., concurring). Subsection (A) then incorporates the precept, first established in the Pendleton Act of 1883, that Federal civil servants should not be subject to the impulses of the patronage or “spoils” system, under which political appointees would sometimes coerce the political support of rank-and-file employees in exchange for continued employment or would allow their personal affinity to govern employment decisions. See Lucas, 462 U.S. at 381-82 & n.18; S. Rep. No. 95-969, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2724-26, 2740.

Subsection (B) bars Federal employees from using their authority or office to influence nominations and elections.

What is the Merit Systems Protection Board’s (MSPB) role with regard to this Merit System Principle?
As with all the Merit System Principles, Merit System Principle 8 is not self-executing, Pollard v. Office of Personnel Management, 52 M.S.P.R. 566, 569-570 (1992). This means that MSPB protects and implements this principle by applying other laws and regulations that put the Merit System Principles into operation as it adjudicates cases within its jurisdiction.

The protections provided Federal employees in Subsection (A) are found in several statutes and regulations. For example, a Federal employee’s right to be free from political coercion is important enough that it is extended even to probationary employees who do not have the same appeal rights that tenured employees have. Under 5 C.F.R. § 315.806(b), probationary employees may appeal the termination of their employment to MSPB if they contend it was “based on partisan political reasons.” See Sweeting v. Department of Justice, 6 M.S.P.R. 715 (1981).

Additionally, in an adverse action appeal, MSPB may determine whether the action should be reversed because it constitutes a prohibited personnel practice (PPP) listed under 5 U.S.C. § 2302(b). Section 2302(b) provides that “[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority” engage in certain actions including the following: (1)(E) discriminate for or against any employee or applicant for employment on the basis of political affiliation; (3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity; or (12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the Merit System Principles including Merit System Principle 8. Examples of cases where the Board addressed Merit System Principle 8 include Kauffman v. Office of Personnel Management, 93 M.S.P.R. 334, ¶¶ 3-4 (2003) and Roane v. Department of Health & Human Services, 8 M.S.P.R. 339, 342 (1981). Furthermore, the Office of Special Counsel (OSC) may file a complaint with the Board seeking to impose a disciplinary action on an employee who is alleged to have committed a PPP. 5 U.S.C. § 1215.

The prohibition of Subsection (B) is enforced primarily through the 1939 Act to Prevent Pernicious Political Activity, as amended, which is more commonly known as the “Hatch Act.” Named after Senator Carl Hatch of New Mexico, the Hatch Act, in general, prohibits Federal employees from engaging in certain partisan political activities. 5 U.S.C. §§ 7323, 7324. For example, employees may not engage in political activity while on duty or in government buildings, while wearing a uniform or official insignia identifying the office or position, or while using a government vehicle. 5 U.S.C. § 7324(a). The Hatch Act, like Merit System Principle 8, expressly prohibits Federal employees from using their “official authority or influence for the purpose of interfering with or affecting the result of an election.” 5 U.S.C. § 7323(a)(1). Furthermore, Federal employees are prohibited from seeking nomination or running as a candidate for partisan political office. 5 U.S.C. § 7323(a)(3). The Hatch Act also has certain “enhanced” provisions that place additional restrictions on employees of certain agencies, including MSPB. 5 U.S.C. § 7323(b); 5 C.F.R. § 734.401.

The OSC has primary responsibility for enforcing the Hatch Act. It may exercise this responsibility by filing a complaint with the Board that charges a Federal civil service employee with violating the Act. The OSC acts as a prosecutor in this context. The Board then decides whether OSC has proven that the employee violated the Hatch Act or its implementing regulations, and if so, what penalty to impose for the violation. Until 2012 the Act provided that the Board must impose removal for an employee’s violation of the Hatch Act unless the Board members find “by unanimous vote” that a lesser penalty, but no less than a 30-day suspension, is warranted. 5 U.S.C. § 7326. Under the Hatch Act Modernization Act, however, removal is no longer the presumptive penalty for a violation, and instead the Board has said that it will conduct an independent analysis to determine the appropriate penalty. See Special Counsel v. Lewis, 121 M.S.P.R. 109 (2014). Some examples of Hatch Act prosecutions before the Board are found in Special Counsel v. Mark, 114 M.S.P.R. 516, ¶2 (2010), and Special Counsel v. Briggs, 110 M.S.P.R. 1, ¶6 (2008). More detailed information on the Hatch Act’s provisions and OSC’s role in enforcing it may be found at OSC’s website.

Does the MSPB have any other role in protecting this Merit System Principle?
Yes. Congress has tasked the Board with reviewing regulations issued by the Office of Personnel Management (OPM). 5 U.S.C. § 1204(f). The Board will invalidate an OPM regulation where the provision requires any employee to commit a PPP. As mentioned earlier, certain actions concerning the Merit System Principles can constitute PPPs. The Board has heard challenges to OPM regulations where individuals have alleged that the regulation would result in a violation of Merit System Principle 8. Examples include Vergara v. Office of Personnel Management, 104 M.S.P.R. 616, ¶4 (2007) (the appellant contended that an OPM regulation was invalid because it would result in an arbitrary action) and Senior Executives Association v. Office of Personnel Management, 67 M.S.P.R. 643, 651-52 (1995) (assertion that OPM regulations affecting an organization’s members violated the protections against arbitrary action, personal favoritism, or coercion for partisan political purposes found in section 2301(b)(8)).

Has the MSPB studied the issue of neutrality?
In the 2013 report, Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, employee survey results reveal that approximately one in four employees believe their supervisor practice favoritism. This report also provides recommendations for agency leaders, supervisors, HRM staff, and employees to reduce the likelihood that favoritism will occur (or be perceived to occur). The bottom line is that selecting officials should be vigilant against being influenced by personal relationships or feelings of affinity, as opposed to focusing on job-related qualifications.

As mentioned earlier, a 2009 report, Fair and Equitable Treatment: Progress Made and Challenges Remaining, summarized survey findings indicating that employees generally believed that discrimination based on race, sex and age have decreased, a substantial percentage of Federal employees harbor concerns about the impact on favoritism on management decisions. Similarly, in a 2011 report, Prohibited Personnel Practices: Employee Perceptions, the MSPB reviewed long-term trends of employees’ perceptions that they had been subject to discrimination based on a variety of covered bases, including their political affiliation. Results showed that, government wide in 2010, 1.1 percent of employees felt they had been subjected to discrimination based on political affiliation. Likewise, less than 1 percent of employees said they experienced political coercion in the preceding two years.